Policy AM-204-11 Military Leave

All employees are eligible to take military leave for uniformed service, including employees who are full or part-time, probationary, seasonal, temporary, elected, appointed, or at-will. There is no minimum amount of time an employee must have worked for the City to become eligible for leave under this policy. Leave will be granted for both voluntary and involuntary service. The uniformed services includes: the Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard) or a Reserve component of one of these branches; the Public Health Service Commissioned Corps; the Maryland organized militia (Maryland Army National Guard, the Maryland Air National Guard, the Inactive National Guard, and the Maryland Defense Force); and any category of persons designated by the President in time of war or national emergency. The uniformed service also may include service the National Disaster Medical System, as provided in 42 U.S.C. § 300hh-11(e). Leave may be taken for a variety of military activities, including (but not limited to) periods of active military service, active and inactive duty training, initial active duty training, funeral honors duty, and fitness-for-service examinations.

Employees must provide advance notice to their supervisors before taking military leave, except in the rare case when advance notice is prevented by military necessity or would otherwise be impossible or unreasonable. Notice may be given orally or in writing and may be communicated by the employee’s military command. Employees must provide notice to their supervisors (and a copy of their orders) as soon as they have knowledge of a service obligation. National Guard and Reserve members should provide their agencies with copies of annual drill and training schedules and orders as soon as they become available. Employees are responsible for notifying their agencies when orders have been updated or extended. Before departing for leave, employees should complete a <em>Military Leave of Absence Form </em>(<cite data-path="§AM-204-11-1">AM-204-11-1</cite>). Agencies will provide service members with a copy of the form as soon as notice is given. In situations where the employee’s military orders provide short notice of an impending service obligation, agencies will work with the service member to gather the information requested on the form.

Except as provided in Section 4 below, military leave is unpaid. Employees may at their election use their accrued vacation, personal, or compensatory leave during their absence. Sick leave may not be used. If accrued leave is not used, the employee’s unused leave balances will be restored upon return to City employment. To use accrued leave, the employee must complete a <em>Military Leave of Absence Form</em> (<cite data-path="§AM-204-11-1">AM-204-11-1</cite>). Accrued leave days will be applied consecutively at the start of military leave. Once the employee’s accrued leave elections are exhausted, the employee will be placed in an unpaid leave status.

An employee will receive <em>paid</em> leave for military service in the following two circumstances only: <u>Inactive Duty Training</u> – Employees who are members of a state National Guard, a Reserve unit, or the Maryland militia will be paid up to fifteen (15) working days each fiscal year to attend military training. During such leave, employees receive their full City salary, in addition to military pay, with no loss of vacation, seniority, or performance rating. Any additional leave beyond the fifteen days will be without pay. Unused days will not carry over from year to year. <u>State Active Duty Service</u> – Any member of the Maryland organized militia who is ordered to state active duty by the Governor of Maryland (usually in times of natural disaster or other public crisis) will be granted paid leave for all time spent in active duty service to the state as provided by Md. Code Ann., <cite data-doc="Md. Code" data-path="gps|13-706">Public Safety § 13-706</cite>. The employee will receive his or her full City salary, in addition to military pay, with no loss of vacation, seniority, or performance rating. In order to receive paid military leave, employees must complete a <em>Military Leave of Absence Form</em> (<cite data-path="§AM-204-11-1">AM-204-11-1</cite>) and attach a copy of their military orders. Eligibility for paid leave is subject to verification by the agency and must be reviewed and approved by the Department of Human Resources City agencies and the Department of Human Resources will review paid leave usage annually to ensure that it is awarded in accordance with this policy.

During a military leave of absence, employees may continue City health benefits (including vision, dental, and prescription drug coverage) under the same pre-leave benefit elections as follows: <u>Service of 30 Days or Less</u> – If the period of military service is expected to last 30 days or less, as in the case of National Guard and Reserve training, the City will automatically continue the employee’s health benefits at active employee rates, unless the employee elects to cancel coverage. Payroll deductions will continue for as long as the employee remains in pay status. Thereafter, the employee will be billed directly for any outstanding premiums. <u>Service of More than 30 Days</u> – If the period of military service is expected to last more than 30 days, employees may elect to continue their City health benefits for up to 24 months or until the deadline for reemployment has passed, whichever comes first. The employee may continue coverage at the employee rate while exhausting accrued leave. Thereafter, the employee will be responsible for paying up to 102% of the premium cost, depending on the benefit. To continue health benefits during leaves of greater than 30 days, an employee must elect to continue the coverage by completing a <em>Military Leave of Absence Form</em> (<cite data-path="§AM-201-11-1">AM-201-11-1</cite>). The City will cancel benefits if an employee fails to make an election or does not make timely payments. Health benefits for eligible employees and their dependents will be reinstated upon return to City employment. Reinstatement of health benefits will occur immediately upon the first day of reemployment without waiting periods or pre-existing condition exclusions, except for illnesses and injuries related to military service under certain plans.

Employees who qualify for reemployment after returning from military leave will be treated as if continuously employed for pension benefit purposes, and time spent on military leave will not be considered a “break in employment” for purposes of vesting and accruals. For members of the <em>Employee Retirement System</em> (ERS) and <em>Elected Officials’ Retirement System</em> (EOS), credited service will continue during military leave, provided the employee qualifies for reemployment, returns to active City employment within one year of discharge from the military, and provides all required documentation. Members of the <em>Fire &amp; Police Employees’ Retirement System</em> (F&amp;P) will receive service credit for military leave during employment, with the City making all mandatory contributions the member would have made if he or she had continued regular full-time employment (“military service contributions”), provided the employee qualifies for reemployment under Section 9 of this policy, returns to active City employment within one year of discharge from the military, and provides all required documentation. F&amp;P members are entitled to the benefit of military service contributions <em>only upon retirement from City employment.</em> Accordingly, members who are not eligible for reemployment, or who separate from the City before retiring, will not receive the benefit of military service contributions. Under all three retirement plans, a member who dies while performing qualified military service will be treated as if actively employed for the purpose of awarding pension benefits, and their beneficiaries will be eligible to receive non-line-of-duty-death benefits. In computing the amount of the benefit, the member will not be entitled to benefit accruals for the time spent in military service. Contributions to the City’s <em>Deferred Compensation Plan</em> cease during military leave once an employee is no longer in pay status, although employees may resume their contributions upon return to active City employment. In addition, employees may make “catch-up” contributions for a period of up to three times the length of his or her military leave (not to exceed five years). If called to active duty for more than 179 days, employees may be eligible to withdraw contributions from their accounts without penalty. Upon return from active duty, those funds may be re-deposited in an IRA for up to 2 years.

Employees on military leave will be eligible for <em>non-seniority</em> based benefits to the same extent they are provided to other employees on comparable forms of leave. For example, an employee on a military leave of absence will accrue leave (vacation, personal, and sick) as long as he or she is in pay status. Once the employee falls out of pay status, leave will not accrue, except as provided in <cite data-path="§AM-208-1">AM-208-1</cite> (<em>Leaves of Absence Without Pay, Parts I &amp; II</em>). Likewise, employees on military leave may continue group life insurance coverage through the City to the same extent as employees on other types of long-term unpaid leaves.

Eligible Fire and Police Department employees who cannot attend scheduled ranked promotional examinations due to military service may arrange to take a makeup exam upon return from military leave as provided in <cite data-path="§AM-204-11-2">AM-204-11-2</cite> (<em>Military Leave Testing Procedures</em>). Employees returning from military leave may also schedule a makeup exam for open and unranked promotional tests. The candidate is responsible for scheduling the makeup exam through the Department of Human Resources, Test Development Division. In order to sit for the exam, candidates must provide a copy of the military orders and written confirmation from their military command that the scheduling conflict could not have been avoided. Employees will be permitted to take a reasonable amount of time to adjust to reemployment before sitting for the exam. The exam will be a comparable, alternate form of the original test administered under controlled and monitored conditions.

City agencies must reemploy a returning service member who is eligible for reemployment. To be eligible for reemployment, all of the following criteria must be met: <em>Notice</em> – The employee must have provided advance notice of the military service as required by Section 2 of this policy. <em>Length of Service</em> – The employee must not have exceeded the five-year cumulative limit on military leave, subject to the exceptions outlined in USERRA’s regulations at 20 C.F.R. §1002.103. <em>Service Discharge</em> – The employee may not have separated from uniformed service with a dishonorable or bad conduct discharge, by court martial, or under “other than honorable conditions.” <em>Timely Application</em> – The employee must have applied for reemployment within the time limits mandated by USERRA: <ul> <li><u>Military leave less than 31 days</u> (including fitness-for-service exams) – No later than the first regularly scheduled workday that starts at least 8 hours after the person’s return home from military service.</li> <li><u>Military leave between 31 and 180 days</u> – No later than 14 calendar days after completing military service.</li> <li><u>Military leave greater than 180 days</u> – No later than 90 calendar days following the completion of military service.</li> <li><u>Following a Service-Connected Illness or Injury</u> – Within the applicable timeframe listed above following recovery from the service-connected illness or injury. The recovery period may not exceed two years from the date of the completion of service, except where circumstances beyond the employee’s control make reporting within this period impossible or unreasonable.</li> </ul> An employee who fails to apply for reemployment in a timely manner will be subject to the City’s conduct rules, policies and practices relating to an employee’s unexcused absence from work. In addition, an agency may in its discretion deny reemployment if there has been a change in circumstances that would make reemployment impossible or unreasonable. For example, an agency may deny reemployment if there has been an intervening layoff that would have included the employee’s position. Reemployment may also be denied if the employee’s pre-service position was for a brief, non-recurrent period with no reasonable expectation the employment relationship would continue for a significant length of time, as in the case of seasonal and contractual employment. <em>Agencies must first contact the Department of Human Resources or the Law Department before denying reemployment to a returning service member.</em>

Agencies must reemploy a returning employee within a reasonable period, normally within 10 working days. The position to which the employee should be restored will depend on the length of the employee’s military service, as follows: <u>Service of 90 Days or Less</u> – Employees who serve in the military for 90 days or less must be restored to the same position they would have attained had their employment not been interrupted by military service. If this is a higher-level position, the agency must make reasonable efforts to train the individual for the job. If training is unsuccessful, the agency should return the employee to his or her pre-service position. <u>Service of Greater Than 90 Days</u><strong>– </strong>Employees who serve for longer than 90 days should be restored to the same position they would have attained absent military service or to a position of similar seniority, status, and pay. If an employee is not qualified for the position, the agency must make reasonable efforts to train the employee. If training is unsuccessful, the agency should either place the individual in the pre-service position or in a position of similar seniority, status and pay to the old position. <u>Disabled Veterans</u> – Agencies must reasonably accommodate an employee with a service-connected disability in the position he or she would have held absent military service. If the agency is unable to reasonably accommodate the person in this position, the agency must place him or her in a position of equivalent seniority, status and pay. If this is impossible to do, the agency may place the employee in a position of lesser status and pay, but with equal seniority. Time spent on military leave counts as time served on the job for the purposes of calculating seniority and other benefits determined by seniority, such as annual leave accrual rates. Returning employees will be restored to the pay level they would have attained if not for the military service, which will include cost of living adjustments and longevity increases.

Any employee who has not completed a probationary period or apprenticeship before taking military leave will be required to serve the remainder of the probationary period, or complete the apprenticeship, upon return to City employment. Once the employee successfully completes the apprenticeship or probationary period, his or her pay and seniority will be adjusted to reflect all pre- and post-service time worked, plus time served in the military.

When an employee returns from a military leave of absence of longer than 30 days, agencies should ask the employee to provide documentation to establish that: 1) the reemployment application is timely; 2) the employee has not exceeded the five-year limit on the duration of service (subject to the exceptions provided in USERRA); and 3) the employee’s separation from service was not disqualifying. An agency should not delay reemployment while awaiting verification, but rather should temporarily reinstate the employee until appropriate documentation is received. If documentation is not forthcoming, agencies may contact the employee’s military command for assistance.

If a service member is reemployed to an at-will position, the agency may not discharge the employee without cause for a period of time, the length of which will depend on how long the employee served in the military. An employee whose military service exceeded 180 days may not be terminated without cause for 1 year. An employee who served for less than 180 days (but more than 30) may not be terminated, except for cause, for up to 180 days. These protections do not apply when the employee’s military service lasts 30 days or less.

This policy prohibits discrimination against any employee or applicant for employment on the basis of their military status or military obligations. No person will be denied employment, reemployment, promotion, or any benefit of employment on the basis of that membership or service. In addition, no employee or applicant will be subjected to retaliation for having exercised his or her rights under this policy or for having participated in an investigation. Concerns about discrimination or retaliation should be immediately reported to the employing agency’s Equal Opportunity Compliance (EOC) Officer or a Human Resources representative.